Intermittent Leave Expires When Approved Frequency Exceeded

Absences in excess of the approved frequency for intermittent leave, even if caused by the same serious health condition, are no longer treated as intermittent absences. These excess absences may, however, be a new basis for FMLA leave. Because these excess absences are not part of a series of intermittent absences but may be an independent basis for FMLA leave, the DOL FMLA rules governing intermittent absences do not apply.

In Barnhouse v. Honda of America Mfg., Inc., No. C-2-04-0987, 2007 U.S. Dist. LEXIS 81562 (S.D. Ohio Nov. 2, 2007), the employee was terminated for violating Honda's attendance policy. Barnhouse had been approved in January 2004 for intermittent leave absences of two episodes a month, with each episode being one or two days in duration (e.g., up to 4 days a month) for migraine-related headaches. He immediately began to exceed the frequency. He incurred 11 intermittent absences in March 2004, and 19 intermittent absences in April 2004.

Under Honda policy, an employee returning to work from leave with work restrictions must notify Honda of his or her return at least 48 hours in advance, to allow Honda time to find a job assignment within the employees medical restrictions. If Honda could not immediately accommodate the restrictions, the employee was not permitted to return to work. In that case, Honda policy required that the employee cover the time away (e.g., two days) from work with available leave. If the employee did not have leave available, the time away from work counted as an "occurrence" for purposes of Honda's attendance/discipline policy. Barnhouse was told that if he incurred another occurrence he would be terminated.

Beginning March 31, 2004, Barnhouse began to use intermittent leave on a daily basis, continuing until April 21, 2004. On April 22, 2004, he returned to work and presented slips for his days off, as well as a return to work slip from his treating physician. The return to work slip included work restrictions for an unrelated back condition. He did not, however, give Honda the requisite 48 hours notice before showing up to work on April 22.

Honda told Barnhouse he should return in two days. Barnhouse did not have any paid leave to cover these two days. As a result, his absences on April 22 and 23 were counted as occurrences for purposes of progressive discipline. Barnhouse subsequently did not return to work, but began another extended absence. Honda terminated Barnhouse for violation of the attendance policy.

Barnhouse sued, alleging that Honda interfered with his FMLA rights when it refused to return him to work on April 22. Honda defended, asserting that it had the right to terminate Barnhouse for violating Honda's attendance policy. Barnhouse, Honda argued, was properly charged an occurrence for April 22-23 when he failed to give two days notice of his return to work.

Barnhouse argued that he should have been immediately returned to work from FMLA leave. He also argued that Honda did not have the right to delay his return to work from intermittent FMLA leave. Because the charged April 22 and 23 absences were intermittent leave for his migraines, Barnhouse argued that Honda was not permitted to delay his return to work for two days as generally permitted by 29 CFR 825.309(c) and 825.312(e).

In pertinent part, 29 CFR 825.312(e) provides:

If an employee is able to return to work earlier than anticipated, the employee shall provide the employer two business days notice where feasible; the employer is required to restore the employee once such notice is given, or where used prior notices was not feasible.

The court found that be being off work 15 consecutive days in April, Barnhouse greatly exceeded the 4 approved intermittent absences a month he was allowed. By exceeding the approved frequency of absences, the court found that his intermittent leave was converted to continuous leave. According to the Court:

Once Plaintiff exceeded the approved leave amount, his need varied from that previously approved. If Plaintiff intended to take April 22-23 as part of his FMLA leave, he was required to notify Defendant Honda. Further, based on the change of circumstances and his extended time off, Plaintiff was obligated to provide two days notice of his return to work date in accordance with Honda policy.

Comment: The upshot of Honda is that absences that occur after an employee exceeds the approved amount of intermittent FMLA leave are no longer intermittent absences, but should be treated as an independent basis for FMLA leave. As such, the employee is required to give notice of the need for FMLA leave. Following the court's logic, an employer would also be entitled to request medical certification and a return to work fitness for duty certification for the excess leave. A FFD certification is generally prohibited where an employee takes FMLA leave intermittently.

The decision imposes consequences where an employee exceeds the approved number of intermittent absences. The DOL rules are silent in this critical area.